April 2015: Good News on Judicial Vacancies

Judicial vacancies on the federal bench now stand at their lowest levels in six years. Vacancies in Article III judgeships have declined from a record-high 110 vacancies in 2010 to a low of 42 vacancies at the end of 2014.

The steep decline in judicial vacancies represents good news on several fronts. Obviously, it’s good for the federal courts and the administration of justice. It represents the satisfaction of constitutional responsibilities by the executive branch and the Senate toward assuring that judges are on the bench to render justice. Second, the erasure of vacancies by more than half demonstrates the willingness of senators on both sides of the aisle to work together, despite the criticism about Washington’s inability to get things done. And third, lower vacancies represent good news for Federal Bar Association (FBA) and its campaign to end the vacancy crisis. FBA leaders and members across the country joined together to educate their senators about why a fully staffed federal bench is important for litigants and the economy. Educating Congress, FBA helped to make a difference.

Other factors contributed to the outcome for sure. One of the most important was the Democrats’ change in the Senate rules in November 2013, reducing the number of votes to end filibusters and allow confirmation votes from 60 to a bare majority of 51. Another factor in 2014 was Majority Leader Harry Reid’s determination to use the floor time necessary to secure as many confirmations as possible before Democrats lost their Senate majority at the end of the year. Those two developments helped to produce in 2014 a bumper crop of Senate-confirmed judges—89—the highest yearly total in the past two decades.

As Brookings Institution scholar Russell Wheeler recently noted: “President Obama’s judicial confirmation rate after six years in office exceeds that of President Clinton and President Bush at this point of their presidencies, and returns us momentarily to the days several decades ago when confirmation rates above 90 percent were the norm. Overall, Obama had a six-year confirmation rate of 92 percent versus 89 percent for Clinton and 84 percent for Bush.”

Vacancies and Home State Senators Looking forward, what can we expect from a Senate whose control has shifted to a party other than the President’s? Sen. Charles Grassley (R-Iowa), the new chairman of the Senate Judiciary Committee, has indicated he expects to maintain the same pace for moving consensus judicial nominees along to the full Senate for confirmation, as occurred during the last Congress when Sen. Patrick Leahy (D-Vt.) chaired the Judiciary Committee.

Any slowdown in the judicial confirmation process is more likely to occur at an earlier point, when the White House first confers with the two home state senators over vacancies and potential judicial nominees. The pace of deliberation by home state senators in identifying and agreeing upon candidates to recommend to the White House for nomination often constitutes the biggest variable in the length of a vacancy. It’s no surprise then that the greatest number of judicial vacancies exists in states where one or both of the home state senators and the President are of different parties. And because the White House traditionally is reluctant to move ahead in naming nominees without the recommendations of the home state senators, the pace of nominations can be significantly slowed down. In late February, 39 of the 49 vacancies were without White House nominees.

Twelve Vacancies in Pennsylvania and Texas Pennsylvania and Texas currently suffer the largest number of district court vacancies—12—accounting for one-quarter of all vacancies throughout the nation. Pennsylvania has four vacancies on its district courts, three in the Western District and one in the Eastern District. Texas has eight vacancies, with five of their judgeships considered “judicial emergencies” by the U.S. Judicial Conference because of the size of their caseloads and the length of the vacancies. Five of the vacancies alone are in the Southern District, with two in the Northern District and another in the Western District. Another four vacancies are slated to arise on the Texas district courts this year.

Overall, 30 future vacancies are anticipated throughout the Article III courts over the course of the coming year, due to announced plans of district and circuit judges to either take senior status or retire.

It’s tempting to take a shot at gauging how many nominees will be cleared over the next two years as President Obama approaches the end of his term and the political smog of 2016 descends. Brookings scholar Wheeler predicts that if history is any guide, 20 percent of Obama’s nominees will secure confirmation. According to Wheeler, “the three most recent two-term presidents, all of whom faced Senates controlled by the other party, saw roughly a fifth of all their judicial confirmations during their final two years.” A modest confirmation rate like that seems possible. Unfortunately, if that’s correct, we can expect judicial vacancies to be on the rise once again.